Ruling could give federal government authority of state's fresh water

Published 7:08 am, Wednesday, April 24, 2013

The ramifications of a ruling by a federal judge, unless overturned by an appellant court, will give the federal government for the first time management authority over fresh water in Texas.

The Texas Commission on Environmental Quality (TCEQ) has the responsibility of regulating fresh water resources within Texas, but that authority has been questioned by the ruling of U.S. District Judge Janis Graham Jack.

Judge Jack, who was born in Los Angeles and appointed to the federal court in 1994 by President Bill Clinton, ruled recently that the TCEQ did not manage the water flows properly into the Guadalupe River, which lead to the deaths of some whooping cranes. Judge Jack said the salinity levels in the river rose because of the reduced amounts of fresh water.

The judge took her reasoning one step further and found TCEQ in violation of the U.S. Endangered Species Act.

Judge Jack mandated that TCEQ create a habitat conservation plan for the cranes, and prohibited the state from issuing any new water permits on the rivers without federal oversight.

Judge Jack's ruling drew the criticism from across the state, and it was immediately stayed by the U.S. Appeals Court for South Texas in Corpus Christi.

State Senator Craig Estes (R-Wichita Falls), who is chairman of the Senate Agriculture Committee and vice chairman of the Senate Natural Resources Committee, wrote a guest column that appeared in many newspapers across Texas where he questioned the impartiality of the judge.

"I am not convinced the case was decided based on the impartial analysis of proven scientific facts," Estes wrote. "The ruling relied heavily on the 'fact' that 23 whooping cranes died during the winter of 2008-2009. The problem, however, is this was never proven. Only four whooping cranes were actually found dead. Furthermore, on December 5, 2011 the Corpus Christi Caller-Times reported the judge on the case told a group of lawyers in her courtroom that, '(my) husband and I are birders, so we also like the whooping cranes and appreciate what they do for the area.' Cases should be decided by impartial judges based on proven facts. That's not what happened here."

Estes said the ruling is flawed because it dismisses the water needs of people and industry in Texas. "Furthermore, when it comes to water, not only should Texans and their businesses be considered, they should take priority.

"People -- their lives, jobs and needs -- are of utmost importance," Estes continued. "In a state where water is scarce, we must survive. The needs of people come first: Texans just got whooped."

Judge Jack's ruling, if allowed to stand, will change the priorities for water usage for Texans and possibly throughout the U.S.

Alex Mills is president of the Texas Alliance of Energy Producers. The opinions expressed are solely of the author.